'I Want To Break Free': Trials And Tribulations Of The Queer Community In India

—Justice D.Y. Chandrachud at a British High Commission event organised in August to commemorate the Supreme Court’s historic 2018 judgment decriminalising same-sex relations.

The course of law often collides with the lives of individuals it governs. A series of landmark judicial decisions and laws related to the LGBTQIA+ community have pitched the course of Rachana’s life since 2009, when she was in her 20s and heading to the US to enrol for a graduate programme.

Through her masters and M.Phil between 2004 and 2008, she had worked on several projects on sex education, HIV and violence against women. Field work made her familiar with male and female gay communities.

Earlier, Rachana had once explored a lesbian experience, but was not anchored in any relationship. Later, she also fell in love with a man, while she actively canvassed for the rights of gay people from an academic point of view.

Years before her departure to the US, her imagination, along with those of her friends and others of her ilk, had been sparked by Deepa Meh-ta’s 1996 movie Fire that put the spotli-ght on lesbian relationships in India. The film became a talking point in her university’s Eng-lish department. Academics and vocal gay rights activists would discuss the film’s nuances in the varsity’s audio-visual club.

A month before she left, the Delhi high court, hearing a petition filed by the NAZ Foundation, had ruled that Section 377 of the Indian Penal Code violated articles 14 (equality before law), 15 (forbidding discrimination) and 21 (protection of life and liberty) of the Constitution. Article 377 criminalised anal intercourse between two individuals, making it a non-bailable offence punishable with a 10-year jail term.

“I knew that it was much more liberating outside India, so I did want to get a sense of that larger activist politics, that larger freedom within society to be whatever you are and to openly be that way and not to hide it. I did want to explore it. It was a good take-off legislation. Even when I was leaving, I felt good about it,” she says.

Rachana’s academic pursuits would take her away from India for five to six years, but she had a feeling that the high court judgment “was the first big step in the battle for LGBTQIA+ rights”, a step that would go a long way in righting the wrongs of laws that stopped the gay community from leading normal lives.

When she returned in 2014, she was still in love with her man. But some hinges had begun to come off that relationship. “It was not about whether it was with a man or a woman. As a relationship, I was beginning to not like the feel of it. I do strongly feel that it had a lot to do with the way it was structured, very traditionally, in a way that heterosexual marriages tend to be. I was beginning to detest the personal politics of a heterosexual relationship,” she says.

Rachana saw a dead end.

Professionally, she worked as a lecturer at a popular college and continued to be involved in various gender sensitisation events in which transgender and transexual communities would be present along with her students.

The interactions gave her a better understanding about how much of a relief these communities got through the 2009 Delhi HC order. But there was more that needed to be done, especially for marginalised and stigmatised communities like transgenders. A recent suicide by a transgender person in Rachana’s had underscored the need for reinterpretation of fundamental rights enshrined in Indian Constitution.

“That was a very poignant moment because everybody else was saying that yes changes are happening in the law, but it is really too slow, it is not doing much because people are actively trying to kill themselves,” she adds.

Then came the Supreme Court judgment of 2014, which expanded the scope from binary genders to incorporate transgenders as a third gender. The order interpreted Article 14 to ensure protection of rights to all persons, which would now come to include men, women and transgenders, seeking to end gender-based discrimination. Activists like Grace Banu lauded the judgment, claiming that it not only made many states and people aware of her community, now legally designated as the ‘third gender’, but also humanised transgenders.

Banu continues to bat for more nuance in the very understanding of transgenders, insisting that legislations governing the community should not only ensure transfer of government benevolence in the form of welfare schemes to the community but also strive to uphold their rights as equal human beings.

Two years after the apex court judgment marked an epoch change in the way India looks at its transgender population, change enveloped Rachana’s life too. Her name was Nandini, her relative. Rachana had known her since she was young. They shared a vibe which was warm, but one they had not owned up or articulated.

“It was in 2016 when we actually started to explore our physical relationship deeply, and it gave us both a lot of joy and a lot of pleasure. There was a spark which set off the relationship. We had always been extremely emotionally connected. We bonded so well that we often completed each other’s sentences,” Rachana says.

The physical compatibility, spark and attraction served as a bedrock of their relationship. But there was a catch. Rachana was still married to the man she had loved earlier.

“Really, I was not brave enough to go through with what I had with Nandini. I stepped into that marriage quite unwisely. And stepped out of it in 2018, unprompted and bravely. Because I just could not put up with that relationship. It was not making me happy at all and now I had something to compare it with, which was my relationship with Nandini,” she observes.

In September 2018, a five-member Supreme Court bench headed by then Chief Justice of India Dipak Misra decriminalised same-sex relations by striking down some punitive provisions of Section 377, after hearing a petition filed by Chandigarh-based classical dancer and yoga teacher Navtej Singh Johar.

In the order, Justice Misra quoted 19th century German philosopher and poet Arthur Schopenhauer’s phrase, “I am what I am, so take me as I am”, while Justice Chandrachud borrowed lines from poet and singer Leonard Cohen: “Our ability to survive as a free society will depend upon whether constitutional values can prevail over the impulses of the time.”

A few days later, Rachana too pleasantly succumbed to an impulse at a gay pride rally held in her city to celebrate the judgment. “This (the rally) was the first time that I very clearly on a microphone said that I am openly bisexual and I think that the law does wonders for us,” she says.

While students at the rally were jubilant, her mother wasn’t. “She still does not know. She has no idea. She would be shattered if she was to know this. I legally got divorced in 2019. She has this sense that on the personal front, my life has failed,” she tells Outlook.

But the judgment has eased life a little bit for Rachana and Nandini, especially when it comes to sorting out the red tape which confronts a same-sex couple. More so, when one of them is a government servant.

“Frankly, if same-sex relationships had not been decriminalised, then I would not have been able to ‘come out’. I would be at the risk of losing my job,” she says. Nandini is now listed as a ‘domestic partner’ in their legal paperwork and a nominee in financial documentation.
But there’s more that Rachana and Nandini expect from Indian courts and lawmakers.

Ever since the 2009 NAZ Foundation judgment set the ball rolling, the pace of the legislative reform to improve the lot of the LGBTQIA+ community has picked up. Last month, the Supreme Court expanded the scope of familial relationships to include “domestic, unmarried partnerships or queer relationships”.

In 2019, Parliament passed the Transgender Persons (Protection of Rights) Act, to protect rights and look after the welfare of transgender people. Although the legislation has been cri-ticised by activists like Banu, who wants its scope expanded further to allow for no-nonsense implementation of their rights, a beginning appears to have been made.

But Rachana wishes for the pace of reform to speed up a bit. Later this month, Rachana and Nandini are poised to fly abroad, to get their civil union registered in a European capital that permits it. They wished they could have done it in their own country. “…It is not a good thing that we have to travel abroad to kind of solidify our relationship. And in some ways, it isn’t really solidifying it, because as an Indian citizen, if the only proof of a civil partnership is something that I have done in a European country, then it is not really the best kind of proof of relationship anyway,” she says.

When asked what she seeks to establish by getting their marriage registered abroad, Rachana replies with a sigh, “Nothing… Just establishing it.”

(This appeared in the print edition as "Alternative Healing")

(The names of the lesbian couple have been changed to protect their identities)